The burden of proof is conventionally described as an absolute probability threshold – for example, the preponderance standard is commonly equated to anything greater than 0.5. In this Essay, I argue that this characterization of the burden of proof is wrong. Rather than focus on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio, and I show how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating for abductive models (inference to the best explanation), the Essay hopes the bridge a gap in current evidence scholarship.

Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection before conviction is unconstitutional across the board or it is permissible immediately after the arrest. The middle ground of requiring a probable-cause determination for an unrelated offense turns out to be inhospitable.

This paper challenges the use of social deprivation in lawful punishment. In this context, ‘social deprivation’ refers not to poverty and its associated social ills, but to genuine social deprivation. Social deprivation is a persisting inadequacy of access to minimally supportive social inclusion. The paper draws on the idea of a general human right against social deprivation to show that there is a specific human right against socially privative punishments such as solitary confinement.

An anonymous survey of nearly 2,000 retired officers found that the manipulation of crime reports — downgrading crimes to lesser offenses and discouraging victims from filing complaints to make crime statistics look better — has long been part of the culture of the New York Police Department.

The story also quotes Frank Zimring, whose separate research "compared the department’s crime data for homicide, robbery, auto theft and burglary to insurance claims, health statistics and victim surveys and found a near-exact correlation."

He said that there was always “some underreporting, and there is some downgrading in every police force that I know of,” but that his research showed that any manipulation was too minuscule to significantly affect the department’s crime statistics.

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have been enacted to restrict the kind of local law enforcement policies that can be established with respect to immigration enforcement.

This paper reflects on the confrontation right that Crawford v. Washington, 541 U.S. 36 (2004), has delivered since Crawford famously overruled Ohio v. Roberts, 448 U.S. 56 (1980). This paper first outlines how the Supreme Court's recent post-Crawford line of decisions regarding “testimonial” evidence effectively returns us to Roberts — or perhaps to an even more narrow conception of confrontation rights than under Roberts. The paper next explains how confrontation rights could have been understood consistent with our modern adversary system of criminal trials, the direction in which I believed Crawford might take us when it overruled Roberts eight years ago. The paper concludes that if the Supreme Court was not prepared to deliver confrontation law to an important and new constitutional principle through Crawford’s wholesale revision of existing doctrine, the Court perhaps better should have heeded Chief Justice Rehnquist’s call in Crawford for restraint.

During the last twenty years, community policing has been the dominant approach to local law enforcement. Community policing is based, in part, on the broken windows theory of public safety. The broken windows theory suggests a link between low-level crime and violent crime — that is, if minor offenses are allowed to pervade a community, they will lead to a proliferation of crime and, ultimately, a community plagued by violent crime. To maintain a perception of community orderliness, many local governments adopted “order maintenance” laws — such as panhandling ordinances and anti-homeless statutes. This emphasis on cracking down on such low-level offenses brought with it an increase in the needs and costs of policing, prosecutions, jails, social services, and other related resources.

In this paper I speak up in defence of an aspect of the ideal of the rule of law that is associated with A.V. Dicey and with the common law tradition, which I call the 'citizens in uniform' doctrine. According to this doctrine public officials, such as police officers, cannot hide behind their official roles in the face of the law. They answer to the ordinary courts for ordinary crimes and torts like the rest of us, and always in their capacities as themselves. Responding to some objections to this doctrine lately expressed by Malcolm Thorburn, I argue that the doctrine is consistent with (and in some respects consonant with) a recognition of the special moral position of the police and similar officials. I devote some energies to explaining aspects of that special moral position in the context of a wider outlook that I end up calling 'the unity of morality'.

This piece steps back from the substantive debate about whether polygamy out to be prohibited by the criminal law, or about the presence or absence of harms that inhere in the practice, asking instead what the debate discloses about the conceptual structure of contemporary criminal law itself. The paper proceeds from two observations about the current debate regarding the constitutionality of the criminalization of polygamy: first, that the issue has generated a degree of anxiety and attention disproportionate to the prevalence of the phenomenon and, second, what one might call a “strange bedfellows” puzzle – the fact that groups of commentators with strikingly divergent substantive commitments have converged in their defence of criminal prohibitions on polygamy. Examining these two features of the debate, this piece argues that polygamy has emerged as an issue with a particular capacity to expose a particular vulnerability at the heart of contemporary criminal law. Specifically, the polygamy debate points to a metaphysical shortfall that afflicts contemporary criminal law, a shortfall that is not something to be remedied but, rather, reflects the predicament of criminal law under the liberal culture of the constitutional rule of law.

Henderson v. United States: (1) Whether a prior state disposition resulting in a one-year suspended sentence, which is not appealable or considered a ‘conviction’ under state law, is a ‘prior conviction’ that has ‘become final’ for purposes of the penalty enhancement provision of 21 U.S.C. § 851; and (2) whether the Due Process Clause requires the court to apply the rule of lenity in choosing between conflicting precedents with regard to the interpretation of a sentencing statute when the issue has never been decided by the en banc court of appeals and neither decision has been overruled.

Justice Kennedy deliver the opinion for the Court in Arizona v. United States. Justices Scalia, Thomas, and Alito filed opinions concurring in part and dissenting in part. Justice Kagan recused herself.

Challenging the neoclassical economic theory that corporate behavior is best governed by the self-regulating process of the free market, this Article maintains that corporations should continue to be subjected to criminal prosecution for violating the law. Stressing the underlying struggle between social and economic institutions to shape our future society, the Author employs institutional economic theory to identify the shortcomings inherent in market-deployed mechanisms as they relate to curtailing corporate criminal behavior. First, the Article details the public mistrust of corporations in light of recent scandals and explores divergent views among academia and practicing attorneys regarding the application of criminal law to artificial entities. Next, the Author examines the relationship of corporations and the criminal law through the lens of institutional economic theory, asserting that financial penalties alone fail to deter corporate criminal activity. The Author rebuffs the claim that individual actors, and not corporations, commit crimes — asserting that corporate cultures tacitly influence the individual actor and thus the entity should bear responsibility for criminal behavior. Finally, the Article suggests assigning criminal liability to corporations is a rational reflection of the public sentiment and eliminating corporations from the ambit of criminal law runs counter to the expectations of society.